Can a North Carolina lawyer appear before a judge whom the lawyer is currently representing in the judge's own case?

Plain-English summary

This opinion (originally published as RPC 253) addressed a lawyer who regularly appeared before a district court judge in domestic court when that judge asked the lawyer to represent him in the judge's own domestic case. The chief district court judge instructed the lawyer to disclose the representation to opposing counsel in any case set before the judge; opposing counsel could then agree the judge would hear the case or ask the judge to recuse, in which case another judge would be assigned. The opinion considered whether the lawyer could appear before the judge, what he had to disclose, whether he could rely on the chief judge's guidance, and his duties after the representation ended.

The opinion concluded the lawyer may appear before the judge after disclosure to opposing counsel and party and their consent. It rested on Canon III D of the Code of Judicial Conduct, which lets a disqualified judge, instead of withdrawing, disclose the basis of disqualification on the record; if the parties and lawyers, independently of the judge, all agree in writing that the relationship is immaterial or the financial interest insubstantial, the judge is no longer disqualified and the signed agreement is incorporated in the record. Following that procedure protects the opposing party and satisfies any concern about the lawyer's conduct; to the extent inconsistent, the opinion withdrew CPR 183.

The opinion concluded the lawyer must disclose the representation to his own client, because that disclosure is necessary to obtain the opposing side's consent, and the judge's consent to the disclosure is implied (Rule 1.6(d)(1)). It concluded the lawyer may rely on the chief district court judge's opinion: courts have concurrent jurisdiction with the State Bar over the conduct of lawyers appearing before them (G.S. § 84-36), and a lawyer's compliance with the local chief district court judge's guidance on potential judicial bias is not a violation of the Rules. Finally, the opinion concluded that after the representation of the judge concludes, the lawyer has no further duty to inform opposing counsel of the prior representation.

Currency note

This opinion was issued in 1997, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites Rule 1.6 under the numbering then in effect, along with the Code of Judicial Conduct (Canon III D) and G.S. § 84-36 as they then stood. Subsequent rule or canon amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a North Carolina lawyer appear before a judge the lawyer is representing?

A: The opinion concluded yes, if the Code of Judicial Conduct's disclosure-and-consent procedure (Canon III D) is followed, with the parties and lawyers agreeing in writing on the record.

Q: Must the lawyer tell his own client about representing the judge?

A: Yes. The opinion concluded disclosure to the client is necessary to obtain the opposing side's consent, and the judge's consent to that disclosure is implied (Rule 1.6(d)(1)).

Q: Can the lawyer rely on the chief district court judge's guidance?

A: Yes. The opinion concluded that, given courts' concurrent jurisdiction over lawyers appearing before them (G.S. § 84-36), compliance with the chief district court judge's guidance on potential judicial bias is not a violation of the Rules.

Q: Does the duty to disclose continue after the representation ends?

A: No. The opinion concluded the lawyer has no further duty to inform opposing counsel of the prior representation once it concludes.

Background and rules framework

The opinion applied North Carolina Rule 1.6 (confidentiality; implied authority to disclose in paragraph (d)(1)), the analogue to Model Rule 1.6, together with the Code of Judicial Conduct (Canon III D, remittal of disqualification) and G.S. § 84-36 (concurrent court and State Bar jurisdiction over lawyers), to a lawyer appearing before a judge who is the lawyer's client.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality) / NC Rule 1.6(d)(1)

Statutes:

• N.C. Gen. Stat. § 84-36 (concurrent jurisdiction of courts and the State Bar over lawyers)

Other authorities:

• Code of Judicial Conduct, Canon III D (disclosure and remittal of judicial disqualification)
• CPR 183 (withdrawn to the extent inconsistent)

See also

• NC State Bar Op. 2005 FEO 1: Appearance Before Judge Who Is a Family Member
• ABA Formal Op. 488: Judges' Personal Relationships and Disqualification

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/97-formal-ethics-opinion-1/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Editor's Note: Opinion was originally published as RPC 253. Before adoption, it was revised to reference the appropriate sections of the Revised Rules of Professional Conduct under which it was finally decided.

Inquiry #1:

Attorney A regularly appears before Judge Z in domestic court. Judge Z asked Attorney A to represent him in his own domestic case. Attorney A sought the guidance of the chief district court judge. The chief district court judge instructed Attorney A to disclose his representation of Judge Z to the opposing lawyer in any case scheduled to be heard by Judge Z. The opposing lawyer may agree that Judge Z will hear the case or the lawyer may ask Judge Z to recuse himself. If the opposing lawyer asks Judge Z to recuse himself, the chief district court judge will find another judge to hear the matter. May Attorney A appear before Judge Z after disclosure of his representation of Judge Z to the opposing counsel and party and their consent to the hearing of the matter by Judge Z?

Opinion #1:

Yes. It appears that the chief district court judge's opinion is based upon Canon III D of the Code of Judicial Conduct which provides:

A judge disqualified [in a proceeding in which his impartiality might reasonably be questioned by reason of financial interests or involvement] may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

Compliance with the procedure set forth in the Code of Judicial Conduct protects the interest of the opposing party and satisfies any concern regarding Attorney A's conduct. To the extent it is inconsistent with this opinion, CPR 183 is withdrawn.

Inquiry #2:

Must Attorney A disclose his representation of Judge Z to his client?

Opinion #2:

Yes, this would appear to be necessary to obtain the consent to proceed from the opposing party and lawyer. Judge Z's consent to this disclosure is implied. Rule 1.6 (d)(1) of the Revised Rules of Professional Conduct.

Inquiry #3:

May Attorney A rely upon the opinion of the chief district court judge or should Attorney A request that Judge Z not be assigned to any of his cases?

Opinion #3:

The courts have concurrent jurisdiction with the State Bar over the conduct of the lawyers who appear before them. G.S. §84-36. A lawyer's compliance with the opinion of the local chief district court judge with regard to a matter involving potential bias on the part of a judge is not a violation of the Rules of Professional Conduct.

Inquiry #4:

After Judge Z's legal representation is concluded, does Attorney A have any further duty to inform opposing counsel of his prior representation of Judge Z?

Opinion #4:

No.